Monday, April 18, 2011

State Rep. Ruth Jones McLendon has HB 2326 up in tomorrow's House Criminal Jurisprudence Committee that would significantly reduce the state jail population by increasing the threshold amounts for theft for both misdemeanors and state jail felonies. The new felony theft threshold would be $3,000, under her bill. Higher theft categories - third degree felonies on up - would remain the same.

This corresponds to some degree with a frequent suggestion on Grits to index theft categories to inflation. Theft categories haven't been updated since 1993, but because of inflation, every year defendants reach the $1,500 felony threshold by stealing a smaller and smaller basket of goods. In real terms, goods worth $1,500 in 1993 when current levels were established were be worth less than $1,000 in 2010. (Try it yourself using the inflation calculator.)

If Texas' 1993 theft levels were adjusted precisely for inflation, you'd hit felony levels somewhere in the $2,300 range. Rep. McLendon's bill does not float theft levels with inflation, but instead sets a new felony theft threshold at $3,000, which would at least allow for several years of inflation before needing adjustment again.

Until the fiscal note is published, we can't know for sure how many cases would be affected, but I suspect it's quite a few. In a perfect world, a good chunk of any savings would go to fund specialized caseloads or probation programming for Class A theft offenders aimed at maximizing victim restitution. It doesn't make a lot of fiscal sense to react to the theft of $1,500 by spending ten times that amount per year on the defendant's incarceration.

MORE: The fiscal note for this bill says the cost savings can't be calculated because there's no data available on the value of goods stolen in theft convictions. According to the Criminal Justice Impact Statement, "In fiscal year 2010, there were 79,401 arrests for theft subject to the provisions of the bill," including both state jail felony thefts and all misdemeanor thefts. "Of those arrested for state jail felony theft (12,839 arrests) subject to the provisions of the bill, 2,010 offenders were placed on felony community supervision, and 1,490 were admitted to state jail for the offense of theft punishable as a state jail felony." Certainly it's true that no data exists regarding the value of goods stolen in state-jail felony theft cases, but it's probably a safe assumption that a disproportionate number (perhaps a third, if I had to guess) will fall into the lower end of the range captured by raising the threshold. If that's accurate, McLendon's bill would divert perhaps 500 new inmates annually from state jails - less than is needed to achieve budget cuts in HB 1, but helpful, nonetheless.

Like its cousins, burglary of a residence and burglary of a vehicle, theft is a crime where the bigger problem is not the inadequacy of punishment but low clearance rates. According to these data, prosecutors secure convictions for state-jail felony theft following just 27.3% of arrests, which tells you these cases are already frequently plead down or dismissed. The majority of those convicted receive probation. Further, police clearance rates for "larceny/theft" are just 17% statewide, according to DPS (see their report "Crime in Texas" [pdf] for FY 2008). Taken together (.17 x .273 = .046 or 4.6%), that means fewer than one in 20 state jail felony thefts reported statewide result in someone actually being convicted of the crime. Raising that ratio even a little would do a lot more to reduce crime than punishing the handful convicted slightly more harshly. Indeed, a commenter points out that prosecutors can already charge this offense as a Class A misdemeanor at their discretion, and many do in order to encourage restitution, in particular. So theft between $1,500 and $3,000 is already de facto treated as a Class A in many circumstances; the Lege may as well update the thresholds and make it official.

9 comments:

Anonymous
said...

Yeah, well, how much of that savings do you really think will be diverted back to the counties for treatment and/or supervision of these new misdemeanor probationers, Grits? With all the cuts being proposed to misdemeanor community supervision, this just amounts to another unfunded mandate shoved back on the counties. Good luck collecting restitution under those circumstances.

Incidentally, Section 12.44 of the Penal Code already provides a mechanism for the reduction of State Jail Felonies to Class "A" misdemeanors. It happens fairly frequently in our county.

12:42, if y'all are already doing that then codifying the practice won't pose as big a problem as one might have guessed. Good to know.

I agree scarce few of the prisoner reduction bills make sense if they don't simultaneously beef up (much cheaper) supervision on the front and back ends. FWIW, I think basic misdemeanor probation got put back in, if I'm reading the engrossed version of HB 1 right.

What data is there statewide as to the number of misdemeanor probationers who are revoked because the won't or can't pay probation fees? Are revoked because they don't pay restitution? Are revoked because of other circumstances? What % actually make full restitution? What % actually pay all fees?

I don't know, 8:49, but whatever the case that arrangement wouldn't be affected by the small shift in numbers from this bill. If they're in a county building now, they'd still be, but county funds don't pay for the marginal extra supervision costs.

What Grits fails to acknowledge is the likelihood that many of these offenders will simply opt for county jail sentences rather than dealing with the financial costs of probation. It happens fairly often already with misdemeanor DWI cases. Unlike state jail felonies, inmates serving time in county jails accrue good time credit. And the MOST they would have to serve would be one year. At least the state jail felony carries the potential for up to 2 years flat time in a state jail. This frequently creates an incentive for the defendant to do probation and comply with the financial terms, including restitution to the victim. But if the objective here is to simply shift more costs from the state back onto the counties, then this is a great idea.

9:52, I notice you're fine with cost shifting in the other direction. Every year, because of inflation, the basket of goods qualifying thieves for a state jail felony gets smaller, i.e, it becomes a felony to steal less and less stuff. That's cost shifting from the counties to the state every year they fail to increase the threshold. But it sounds like your panties aren't in quite as big a wad about that.

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